Wednesday, January 5, 2011

I swore I wasn’t going to write about Brett Favre; then he got sued

533262601_e5c9493d2c_m Earlier this week, two former employees of the New York Jets sued their former employer and Brett Favre for sexual harassment. The message therapists allege that Favre made unwanted sexual advances during his tenure with the Jets in 2008. The lawsuit comes on the heels on the NFL’s fine against Favre for not cooperating with its investigation of similar allegations made by former Jets television host Jenn Sterger. Because others have covered the issues of the dangers of text messaging in harassment prevention and litigation (Philip Miles’s Lawffice Space, for one), I have a different take on this story.

The timing of the lawsuit—on the heals of the NFL’s closure of the Sterger investigation and its $50,000 fine of Favre—is more than suspicious. In their complaint, the plaintiffs try to explain the nearly 2½ year gap between the alleged harassment and the lawsuit:

   30. The plaintiffs have refrained from filing suit in the misguided hope that the NFL would take some meaningful action against defendant Favre for his improper behavior with Ms. Scavo, Ms. Sterger and others.

   31. Unfortunately, instead of taking any meaningful action, the NFL, after an alleged extensive investigation, which according to the media used former FBI agents and other extensive resources, provided no meaningful report, made no findings, waited until the regular football season was basically over and Favre was retiring from football and then reached the inexplicable and rather shocking conclusion that Favre did not violate any league policies regarding conduct in the workplace but rather merely failed to cooperate.

   32. The NFL imposed what is a relatively meaningless fine of $50,000 after probably spending a hundred times that amount on its alleged investigation and public relations attempt to derail any inquiry which would determine what occurred and to institute procedures to prevent the type of behavior Favre was accused of in the future.

   33. Since the NFL took no action, the plaintiffs had no choice but to commence their own legal action to be permitted to work in their chosen profession without being harassed, to recover the damages they had suffered and hopefully, maybe someday, to deter players in the NFL from acting inappropriately with other women who are required to come into contact with football players within the scope of their work and to encourage other women who are harassed by professional athletes in the workplace to come forward without fear of retribution.

I have no idea whether Favre propositioned the plaintiffs for a three-way encounter, just like I have no idea whether the pictures of Favre’s maleness that have surfaced online are genuine. The truth lies somewhere in between the allegations and the text messages. But, it certainly doesn’t help the plaintiffs’ cause that, according to Good Morning America, they refused to cooperate with an earlier NFL investigation concerning “media reports that Favre had made passes at two massage therapists who worked for the New York Jets.” It also doesn’t help their cause that their lawsuit looks like a money grab, piggy backing off the high publicity Jenn Sterger investigation.

I am not arguing that a gap of years between harassment and a lawsuit means that the harassment did not happen. I am, however, questioning the motives of the individuals bringing it to light via a lawsuit 2½ years later. Ultimately it will be up to a jury to determine the extent to which the timing undermines the plaintiffs’ credibility. It would be a shame if that timing ends up clouding the truth.

(Photo by Lisa Yarost, available on Flickr)

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or

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